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Nathubhai Bhailal Vs. Javher Raiji and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom121
AppellantNathubhai Bhailal
RespondentJavher Raiji and anr.
Excerpt:
.....law - contract--married woman--capacity of a hindu female to enter into a contract without her husband's consent--when such contract is binding on the husband--stridhan - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had given all his shares to her - will..........for our opinion is, 'whether or not a wife, who is separated from her husband, is liable for debt contracted by her. '2. he has not informed us as to the circumstances under which, or as to the purpose for which, the debt was contracted: and the only facts stated to us are that it was contracted jointly by the two defendants, brother and sister, the latter being a married woman living separate from her husband; that 'the defendants are of the rajput caste and are labourers by calling'; and that, in contracting the debt, the female had acted without her husband's consent. there; is not any statement that the defendant hetta has been so ill-treated by her husband or his second wife as to warrant hetta in leaving him, or to create a liability on his part to pay debts contracted by her.....
Judgment:

Nanabhai Haridas, J.

1. This is a reference made to us by the Judge of the Court of Small Causes at Ahmedabad under Section 22 of Act 'XI of 1865. The question he has referred for our opinion is, 'whether or not a wife, who is separated from her husband, is liable for debt contracted by her. '

2. He has not informed us as to the circumstances under which, or as to the purpose for which, the debt was contracted: and the only facts stated to us are that it was contracted jointly by the two defendants, brother and sister, the latter being a married woman living separate from her husband; that 'the defendants are of the Rajput caste and are labourers by calling'; and that, in contracting the debt, the female had acted without her husband's consent. There; is not any statement that the defendant Hetta has been so ill-treated by her husband or his second wife as to warrant Hetta in leaving him, or to create a liability on his part to pay debts contracted by her for necessaries. The mere circumstance of his marrying a second wife would not justify Hetta in leaving her husband.

3. We may, therefore, assume (and, if we do so erroneously, the Judge of the Small Cause Court should so inform us) that the debt was not contracted under any of the circumstances or for any of the purposes which would render her husband liable for it; and this we do the more readily, as the plaintiff has not sought to obtain a decree against him.

4. Such being the case, we have to consider whether the Judge is right in the broad proposition of law laid down by him, that the 'contract which she entered into with the plaintiff is' vitiated by reason of her having done so without her husband's consent.

5. A Hindu female is not, on account of her sex, absolutely disqualified from entering into a contract. In the enumeration of persons incompetent to contract given by Manu, Yajnyavalkya, Katyayana, and Gotama (Coleb. Dig. Bk. II, Ch. IV, Texts 57, 58, 61, and 66) a woman as such is not included; and marriage, whatever other effect it may have, does not take away or destroy any capacity possessed by her in that respect (1 Str. H.L. 276). She is capable of acquiring and holding property in her own right (Mit. Ch. II, Section 1, 25; 3 Mad. H.C. Rep. 272); and when she holds any such, her power over it is absolute. It is expressly laid down by Katyayana, in respect of such property, that 'the power of women' is ever celebrated, both in respect of donation and of sale, according to their pleasure, even in the case of immoveables '(Vya. May. Ch. IV, Section X, 8). It is further laid down by the same authority that' neither the husband, nor the son, nor the father, nor the brothers can assume the power over a woman's property, to take it or bestow it '(Vya. May. Ch IV, Sec, X, 10) and by Manu that such kinsmen as (by any pretence) appropriate the fortunes of women during their lives, a just king must punish with the severity due to thieves' (Vya. May., Ch. IV See. X, 10.) The absence of consent, therefore, on her husband's part, cannot affect her power to deal with such property; and it is impossible to hold, with the Judge of the Court of Small Causes that a married woman's contract is necessarily void, if her husband has not consented to it.

6. Where she enters into a contract with the consent or authority of her husband, she acts as his agent, and binds him by her act. So also does she bind him by her contract, if she enters into it under certain circumstances, even though without such consent or authority, the law in that case empowering her to pledge her husband's credit. If, however, she enters into a contract in the absence of such consent or circumstances, she fails to bind her husband by her act. But the law does not say that she herself shall not be bound by it. On the contrary, we find it expressly laid down that she shall pay, amongst others, debts contracted by herself. Thus Yajnyavalkya says: 'A debt acknowledged or contracted by her jointly with her husband or son' or contracted by the woman herself, must be paid by a wife or mother' (Coleb. Dig., Bk. I, Text 210); and Katyayana: 'A debt contracted jointly with her husband or son, or singly by the woman herself, shall be paid by a wife, or mother' (Coleb Dig., Bk. I, Text 211. Viramitrodaya 353, (Calc. Edn. 1875). Narada again says 'that a childless widow must pay the debt of her sister enjoining payment; or whoever receives the assets left by that sister must pay her debts' (Coleb. Dig., Bk. I, Text)--a direction which necessarily presupposes in the sister the legal capacity to borrow money upon her own credit; and upon that text the author of the Ratnakara observes: 'On the death of one of two sisters, left as coparceners in the house of their father, who had no male issue, the debt of that sister must be discharged by the surviving sister enjoined to pay it' (Coleb. Dig., Bk I, Text).

7. Although there is no reported decision on the point referred to us, the subject seems to have engaged the attention of this Court in at least two cases. Both of them were, like this, cases from. Ahmedabad. One of them, S.A. No. 261 of 1861, was a suit against a high caste Native lady, in which the plaintiff sought to recover from her a large sum of money due on a bond executed by her. The principal question raised in that special appeal, that upon which the whole case would appear to have ultimately turned, was, whether she was liable, being under the protection of her husband who had not consented to the transaction; and the Court (Sir M. Sausse, C.J., and Herbert and Forbes, JJ.,) on the 2nd February. 1863 upheld the District Judge's decree, awarding with costs the full amount claimed, to be recovered from the defendant's stridhan.

8. The other case, S.A., No. 4-67 of 1869, was a suit to recover from one Nathi and another woman a sum of money due upon a bond alleged to have been executed by them jointly to the plaintiff. Nathi's defence was, first, that she had not executed the bond, and, secondly, that, being a married woman, she was incompetent to execute it, and, therefore, not liable. Upon both of these points the Principal Sadar Amin found in her favour, and he accordingly rejected the claim. That decision, however, was reversed, on appeal, by the Assistant Judge, who held the bond proved, and also that Nathi was personally liable upon it, notwithstanding that her husband was alive. In special appeal against that decision she relied upon coverture as absolving her from all liability upon the bond sued on, which point was ruled against her, and the Court (Sir C. Sargent and Melvill, JJ.,) on the 17th January 1870, amended the Assistant Judge's decree by striking out so much of it as makes her 'personally liable,' and inserting words limiting her' liability to the extent of her stridhan, including the house mentioned in the bond.'

9. We are of opinion that those cases were properly decided, and our reply to the Judge of the Court of Small Causes will accordingly be that a wife who has voluntarily separated from her husband without any circumstances justifying her separation is liable for a debt contracted by her (even for necessaries), although without her husband's consent; but her liability is limited to the extent of any stridhan she may have.


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